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9th Circuit Cout of Appeal (CA9) Remands Motion to Reopen for BIA Abuse of Discretion September 22, 2006

Posted by dsheen88 in Immigration Cases, Immigration Laws and Policies, MyComments, Simply Immigration!.

Petitioners, a husband and wife from Mexico, were denied cancellation of removal by the immigration judge for failure to demonstrate that their U.S. citizen children would suffer “exceptional and extremely unusual hardship” as required by INA §240A(b)(1)(D). The BIA affirmed the denial but granted Petitioners voluntary departure. By the time the Board’s decision was issued, the female petitioner had become seriously ill. The couple failed to voluntarily depart the U.S. and instead filed a motion to reopen with the BIA, attaching new evidence of hardship in light of the female petitioner’s illness. Specifically, Petitioners submitted a letter from the wife’s doctor, which explained that the nature of her illness “may be, in fact, life threatening” and that “it is essential that [she] be allowed to remain in the area and receive . . . proper medical care.” The BIA denied the motion to reopen.

The court found that the BIA did not even mention the female petitioner’s medical problems when it explained its reason for denying the motion. The court held that “[t]he BIA’s failure to identify and evaluate the favorable factors was an abuse of discretion.” The court granted the petition for review and remanded the case to the BIA for further proceedings consistent with its opinion.

Franco-Rosendo v. Gonzales (9th Cir. July 18, 2006)

Doc. No. 06092146 (posted Sep. 21, 2006)–

The BIA’s failure to identify, consider and evaluate factors that are favorable to granting a motion to reopen is an abuse of discretion.



1. Nap - September 8, 2007

The 9th circuit court of appeals has lost its mind, they are supposed
to uphold the law and make sure the legal procedings were correct,
that is there job, Not invent reasons why the law is not good.
They are in some bodys pocket.

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